S.B. No. 1693
 
 
 
 
AN ACT
  relating to the regulation of poultry facilities and poultry litter
  by the State Soil and Water Conservation Board and to the
  enforcement authority of the Texas Commission on Environmental
  Quality.
         BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
         SECTION 1.  Subchapter C, Chapter 382, Health and Safety
  Code, is amended by adding Section 382.068 to read as follows:
         Sec. 382.068.  POULTRY FACILITY ODOR; RESPONSE TO
  COMPLAINTS. (a)  In this section, "poultry facility" and "poultry
  litter" have the meanings assigned by Section 26.301, Water Code.
         (b)  The commission shall respond and investigate not later
  than 18 hours after receiving:
               (1)  a second complaint against a poultry facility
  concerning odor associated with:
                     (A)  the facility; or
                     (B)  the application of poultry litter to land by
  the poultry facility; or
               (2)  a complaint concerning odor from a poultry
  facility at which the commission has substantiated odor nuisance
  conditions in the previous 12 months.
         (c)  If after the investigation the commission determines
  that a poultry facility is violating the terms of its air quality
  authorization or is creating a nuisance, the commission shall issue
  a notice of violation.
         (d)  The commission by rule or order shall require the owner
  or operator of a poultry facility for which the commission has
  issued three notices of violation under this section during a
  12-month period to enter into a comprehensive compliance agreement
  with the commission. The compliance agreement must include an odor
  control plan that the executive director determines is sufficient
  to control odors.
         (e)  The owner or operator of a new poultry facility shall
  complete a poultry facility training course on the prevention of
  poultry facility odor nuisances from the poultry science unit of
  the Texas AgriLife Extension Service not later than the 90th day
  after the date the facility first accepts poultry to raise. The
  owner or operator of a new poultry facility shall maintain records
  of the training and make the records available to the commission for
  inspection.
         (f)  The poultry science unit of the Texas AgriLife Extension
  Service may charge an owner or operator of a poultry facility a
  training fee to offset the direct cost of providing the training.
         SECTION 2.  Section 26.302, Water Code, is amended by adding
  Subsections (b-2) and (b-3) to read as follows:
         (b-2)  The State Soil and Water Conservation Board in
  consultation with the Texas Commission on Environmental Quality by
  rule shall establish criteria to determine the geographic,
  seasonal, and agronomic factors that the board will consider to
  determine whether a persistent nuisance odor condition is likely to
  occur when assessing the siting and construction of new poultry
  facilities.
         (b-3)  The State Soil and Water Conservation Board may not
  certify a water quality management plan for a poultry facility
  located less than one-half of one mile from a business, off-site
  permanently inhabited residence, or place of worship if the
  presence of the facility is likely to create a persistent odor
  nuisance for such neighbors, unless the poultry facility provides
  an odor control plan the executive director determines is
  sufficient to control odors. This subsection does not apply to:
               (1)  a revision of a previously certified and existing
  water quality management plan unless the revision is necessary
  because of an increase in poultry production of greater than 50
  percent than the amount included in the existing certified water
  quality management plan for the facility; or
               (2)  any poultry facility located more than one-half of
  one mile from a surrounding business, permanently inhabited
  off-site residence, or place of worship established before the date
  of construction of the poultry facility.
         SECTION 3.  Subchapter H, Chapter 26, Water Code, is amended
  by adding Sections 26.304 and 26.305 to read as follows:
         Sec. 26.304.  RECORDS OF SALE, PURCHASE, TRANSFER, OR
  APPLICATION OF POULTRY LITTER. (a)  A poultry facility that sells
  or transfers poultry litter for off-site application must maintain
  until the second anniversary of the date of sale or transfer a
  record regarding:
               (1)  the identity of the purchaser or applicator;
               (2)  the physical destination of the poultry litter
  identified by the purchaser or transferee;
               (3)  the date the poultry litter was removed from the
  poultry facility; and
               (4)  the number of tons of poultry litter removed.
         (b)  A person that purchases or obtains poultry litter for
  land application must maintain until the second anniversary of the
  date of application a signed and dated proof of delivery document
  for every load of poultry litter applied to land. The landowner or
  the owner's tenant or agent shall note on the document the date or
  dates on which the poultry litter was applied to land.
         (c)  Subsection (b) does not apply to poultry litter that is:
               (1)  taken to a composting facility;
               (2)  used as a bio-fuel;
               (3)  used in a bio-gasification process; or
               (4)  otherwise beneficially used without being applied
  to land.
         Sec. 26.305.  INSPECTION OF RECORDS. The commission may
  inspect any record required to be maintained under this subchapter.
         SECTION 4.  Section 5.1175, Water Code, is amended to read as
  follows:
         Sec. 5.1175.  PAYMENT OF PENALTY BY INSTALLMENT. (a)  The
  commission by rule may [shall] allow a person who [small business
  that] owes a monetary civil or administrative penalty imposed for a
  violation of law within the commission's jurisdiction or for a
  violation of a license, permit, or order issued or rule adopted by
  the commission to pay the penalty in periodic installments. The
  rule must provide a procedure for a person [qualified small
  business] to apply for permission to pay the penalty over time.
         (b)  [The rule must classify small businesses by their net
  annual receipts and number of employees. A business that is a
  wholly owned subsidiary of a corporation may not qualify as a small
  business under this section.
         [(c)]  The rule may vary the period over which the penalty
  may be paid or the amount of the periodic installments according to
  the amount of the penalty owed and the size of the business that
  owes the penalty. The period over which the penalty may be paid may
  not exceed 36 [12] months.
         SECTION 5.  Section 7.002, Water Code, is amended to read as
  follows:
         Sec. 7.002.  ENFORCEMENT AUTHORITY. The commission may
  initiate an action under this chapter to enforce provisions of this
  code and the Health and Safety Code within the commission's
  jurisdiction as provided by Section 5.013 of this code and rules
  adopted under those provisions. The commission or the executive
  director may institute legal proceedings to compel compliance with
  the relevant provisions of this code and the Health and Safety Code
  and rules, orders, permits, or other decisions of the commission.
  The commission may delegate to the executive director the authority
  to issue an administrative order, including an administrative order
  that assesses penalties or orders corrective measures, to ensure
  compliance with the provisions of this code and the Health and
  Safety Code within the commission's jurisdiction as provided by
  Section 5.013 of this code and rules adopted under those
  provisions.
         SECTION 6.  Subsection (h), Section 26.0135, Water Code, is
  amended to read as follows:
         (h)  The commission shall apportion, assess, and recover the
  reasonable costs of administering the water quality management
  programs under this section [from users of water and wastewater
  permit holders in the watershed according to the records of the
  commission generally in proportion to their right, through permit
  or contract, to use water from and discharge wastewater in the
  watershed]. Irrigation water rights, non-priority hydroelectric
  rights of a water right holder that owns or operates privately owned
  facilities that collectively have a capacity of less than two
  megawatts, and water rights held in the Texas Water Trust for terms
  of at least 20 years will not be subject to this assessment. The
  cost to river authorities and others to conduct water quality
  monitoring and assessment shall be subject to prior review and
  approval by the commission as to methods of allocation and total
  amount to be recovered. The commission shall adopt rules to
  supervise and implement the water quality monitoring, assessment,
  and associated costs. The rules shall ensure that water users and
  wastewater dischargers do not pay excessive amounts, [that program
  funds are equitably apportioned among basins,] that a river
  authority may recover no more than the actual costs of
  administering the water quality management programs called for in
  this section, and that no municipality shall be assessed cost for
  any efforts that duplicate water quality management activities
  described in Section 26.177. [The rules concerning the
  apportionment and assessment of reasonable costs shall provide for
  a recovery of not more than $5,000,000 annually. Costs recovered by
  the commission are to be deposited to the credit of the water
  resource management account and may be used only to accomplish the
  purposes of this section. The commission may apply not more than 10
  percent of the costs recovered annually toward the commission's
  overhead costs for the administration of this section and the
  implementation of regional water quality assessments. The
  commission, with the assistance and input of each river authority,
  shall file a written report accounting for the costs recovered
  under this section with the governor, the lieutenant governor, and
  the speaker of the house of representatives on or before December 1
  of each even-numbered year.]
         SECTION 7.  The change in law made by Subsection (e), Section
  382.068, Health and Safety Code, as added by this Act, applies only
  to an owner or operator of a poultry facility the construction of
  which begins on or after the effective date of this Act. An owner or
  operator of a poultry facility the construction of which began
  before the effective date of this Act is governed by the law in
  effect at the time the construction of the facility began, and the
  former law is continued in effect for that purpose.
         SECTION 8.  This Act takes effect September 1, 2009.
 
 
 
 
 
  ______________________________ ______________________________
     President of the Senate Speaker of the House     
 
         I hereby certify that S.B. No. 1693 passed the Senate on
  April 24, 2009, by the following vote: Yeas 30, Nays 0; and that
  the Senate concurred in House amendments on May 30, 2009, by the
  following vote: Yeas 31, Nays 0.
 
 
  ______________________________
  Secretary of the Senate    
 
         I hereby certify that S.B. No. 1693 passed the House, with
  amendments, on May 26, 2009, by the following vote: Yeas 145,
  Nays 0, two present not voting.
 
 
  ______________________________
  Chief Clerk of the House   
 
 
 
  Approved:
 
  ______________________________ 
              Date
 
 
  ______________________________ 
            Governor